Citation Nr: 1704148
Decision Date: 02/10/17 Archive Date: 02/23/17
DOCKET NO. 13-05 706 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUE
Entitlement to service connection for multiple myeloma.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESSES AT HEARING ON APPEAL
Appellant and spouse
ATTORNEY FOR THE BOARD
N. Snyder, Counsel
INTRODUCTION
The Veteran had active service from November 1968 to April 1979 and July 1981 to August 1994.
This matter came before the Board of Veterans' Appeals (Board) from a May 2011 decision by the Department of Veterans Affairs (VA) Regional Office (RO).
In November 2016, the Veteran and his wife testified at a Travel Board hearing before the undersigned.
This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014).
FINDING OF FACT
The Veteran was exposed to herbicides in service, and he has manifested multiple myeloma to a compensable degree.
CONCLUSION OF LAW
The criteria for service connection for multiple myeloma have been met.
38 U.S.C.A. §§ 1101, 1110, 1116, 1131, 1137, 5107 (West 2014); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2016).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veteran asserts that service connection is warranted for multiple myeloma secondary to herbicide exposure during his service aboard the USS Lyman K. Swenson. The record reveals the Veteran's service on the USS Lyman K Swenson (DD 729) in the Vietnam area of operations from April 5, 1970, to May 14, 1970, June 3, 1970, to June 13, 1970, June 17, 1970, to July 6, 1970, and July 23, 1970, to August 9, 1970.
Medical evidence of record reflects diagnosis of multiple myeloma. Thus, the issue that the Board must address to resolve this claim is whether the Veteran was exposed to herbicides during his service in order to award presumptive service connection for the disability.
Service connection may be established for disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.
Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes the disease was incurred in service. 38 C.F.R. § 3.303(d).
Service incurrence for certain diseases, including multiple myeloma, will be presumed on the basis of an association with certain herbicide agents (e.g., Agent Orange). 38 U.S.C.A. § 1116; 38 C.F.R. §§ 3.307 (a)(6), 3.309(e). Such a presumption, however, requires evidence of actual or presumed exposure to herbicides.
Veterans who during active service served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, shall be presumed to have been exposed to an herbicide agent, unless there is affirmative evidence of non-exposure. 38 U.S.C.A. §§ 1116; 38 C.F.R. § 3.307.
For purposes of applying the presumption of exposure to herbicides under 38 C.F.R. § 3.307 (a)(6)(iii), the service member must have actually been present at some point on the landmass or the inland waters of Vietnam during the Vietnam conflict. 38 C.F.R. § 3.307 (a)(6)(iii); see generally Haas v. Peake, 525 F.3d 1168 (Fed. Cir. 2008); VAOPGCPREC 27-97 (holding that mere service on a deep-water naval vessel in waters offshore of the Republic of Vietnam is not qualifying service in Vietnam).
VA guidelines indicate that "inland waters" include rivers, canals, estuaries, and delta areas, such as those on which the Vietnam "brown water" Navy operated. Service aboard a ship that merely anchored in deep-water coastal harbor, such as Da Nang, Vung Tau, Qui Nhon, Ganh Rai Bay, or Cam Ranh Bay, along the Republic of Vietnam coast does not constitute inland waterway service or qualify as docking to the shore and is not sufficient to establish presumptive exposure to herbicides, unless the evidence of record confirms the Veteran went ashore during anchorage. VA Adjudication Manual M21-1 IV.ii.2.C.3.m. Cf. Gray v. McDonald, 27 Vet. App. 313 (2015). All harbors and bays are considered offshore, while all rivers and deltas are considered inland. The following locations are considered offshore waters of the Republic of Vietnam: Da Nang Harbor, Nha Trang Harbor, Qui Nhon Bay Harbor, Cam Ranh Bay Harbor, Vung Tau Harbor, and Ganh Rai Bay. VA Adjudication Manual M21-1 IV.ii.1.H.2.c.
The record, which includes deck logs for the USS Lyman K Swenson, does not support a finding that the USS Lyman K Swenson sailed within the brown waters of Vietnam during the Veteran's service. The deck logs indicate that the USS Lyman K Swenson remained off the coast of Vietnam while the Veteran was aboard, generally within Da Nang Harbor, though it sailed along the coast to the west coast of Vietnam for a gunfire support mission at U Minh Forest, which is located on the west coast of Vietnam, in April 1970. As noted above, the Da Nang Harbor is considered offshore waters of the Republic of Vietnam. A map of Vietnam shows U Minh Forest is located on the west coast of Vietnam. Thus, by itself, the Veteran's service on the USS Lyman K Swenson does not warrant application of the presumption of exposure to herbicides.
However, the Veteran has also reported that he went on patrol boats that sailed into the brown waters of Vietnam. See, e.g., November 2016 statement. Although the relevant service records do not specifically confirm that his service duties placed him within inland waters, the Veteran's statement is consistent with his service and the Board finds no reason to question his veracity. Based on this competent and credible history, the Board finds the Veteran was exposed to herbicides during active service. The Board further finds that he later manifested multiple myeloma to a compensable degree. Therefore, service connection is warranted for multiple myeloma on a presumptive basis.
ORDER
Service connection for multiple myeloma is granted.
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T. REYNOLDS
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs